In case it's not already clear to my readers, this small but discerning bunch, one of our many goals here at UR is to paint a simpler, more compelling picture of present history than either the official story, or any of the many well-known counter-narratives.

As a formalist, I define power as the ability to change the rules, or to clarify them when no rules exist. In a mature, sclerotic megastate like the US, it can be very hard to see where the power is, because (by historical standards) there is almost no change in the US.

But this does not indicate an absence of power. It indicates a balance of power. It means the various forces exerting pressure in various directions cancel each other, at least mostly. One of the best features of the current US regime, and one of the worst, is that it's much easier to prevent change than to create change. The compromise is generally the status quo. But if some deus ex machina could remove one of the opposing power centers, or point one in a new and unopposed direction, we'd see instant and explosive change. The whole city of Washington is in the power business, and they don't screw around.

Indeed, kids in school are taught that the US is balanced by a separation of powers. But the power structure they learn is the original design of the Constitution, as borrowed from Montesquieu - legislative, executive and judicial. This is like saying a Camaro has 250 horses under the hood. It's true in a certain metaphorical sense, but it's not actually true. In the same sense, the Roman Empire never thought of itself as anything other than the Roman Republic.

By my count, Anglophone North America ex Canada is on its fifth legal regime. The First Republic was the Congressional regime, which illegally abolished the British colonial governments. The Second Republic was the Constitutional regime, which illegally abolished the Articles of Confederation. The Third Republic was the Unionist regime, which illegally abolished the principle of federalism. The Fourth Republic is the New Deal regime, which illegally abolished the principle of limited government.

Of course, all these coups are confirmed by the principle of adverse possession. Otherwise we would find ourselves looking for the rightful heirs of Metacom, or Edward the Confessor, or whoever. Nor is there any automatic reason to treat any of these five regimes as better or worse than any of the others. If, like me, you're tired of the Fourth Republic and would like to see it abolished, all we know about its successor is that it will be the Fifth Republic. It has no need to resemble the Third, the Second or the First.

The real legal nature of the Fourth Republic is that, like the UK, it has no constitution. Its legitimacy is defined by a set of precedents written by New Deal judges in the 1930s. These have obscure names like Footnote Four, West Coast Hotel, and Wickard v. Filburn.

These precedents establish the Fourth Republic as a universal and absolute government, subject only to a few isolated limitations, which in practice do not matter at all. For example, no European country has any clear equivalent of our First Amendment, either in its original meaning or in its Footnote Four restatement. If dissidents are being lined up and shot in stadiums in Europe, I have somehow remained ignorant of it. "Constitutional law" in the Fourth Republic is a very real and very substantial body of law, but its connection to the original charter of the Second Republic is entirely nominal.

No, the US government is the 800-pound gorilla. It sits wherever it wants. But "it" is not one entity. It is, again, a network of competing power centers.

The closest well-known equivalent to the way I see the Fourth Republic's power structure is a concept that dates to the '60s, the iron triangle. The iron triangle is certainly real, but for some reason - no doubt related to the agenda of the official intellectuals who created it - it's missing most of its vertices. In fact, what we're looking at here is an iron polygon.

The key to power in the Fourth Republic is that no one who has power wants anyone to think of them as having power. For example, in the traditional iron triangle, legislators do not have power. They are just expressing the will of the people. Civil servants do not have power. They are just making public policy. Lobbyists do not have power. They are just communicating their concerns.

This is a profoundly Orwellian situation. The root of the problem is that the modern English language has no word which means "power," but carries only positive associations.

Perhaps the most important fact about power is that the powerful are almost always sincere. They honestly believe they are doing good. Every Sauron considers himself a Boromir. And - as Acton observed - every Boromir has an inner Sauron. Since this is widely recognized, and since "power" is generally associated with "evil," the people in the US who have actual power do not and cannot think of themselves as having power.

However, there are euphemisms for it. Perhaps the most common is "responsibility."

A good way to find the most powerful people in the US is to find the most responsible people. No one in the US is scheming for power. A lot of them seem to be working for change. No one in the US is brainwashing the masses. A lot of them seem to be educating the public. No one in the US is ruling the world. A lot of them seem to be making global policies.

Having power means you have a choice. Mandelstam's poem on Stalin comes to mind - "he sticks out his finger, he alone goes bang." Stalin was certainly one of the most powerful men in the 20th century, if not in human history. Most of us think he was evil. He would probably disagree. But if Stalin had woken up one day and decided that yesterday, he was evil, but today he would be good - by my definition of "good" - by definition, he would have used his power to do good. To be, in other words, responsible.

The New York Times is a paragon of "responsible journalism." It, or at least its journalists, would like us to be concerned about global warming. We can tell this by the fact that they write many stories on the subject. Surely if they didn't want us to think about the subject, it is within their personal discretion to avoid it. They don't. And since many people read the New York Times, many of us are concerned about global warming.

But if these same journalists were to wake up, one day, and decide that instead we should not be worrying about global warming, but about black crime or Iranian outrages or the menace of marijuana, they could write those stories instead. Granted, if they just turned on a dime this way, they might surprise us a little. It would probably work better if they gradually phased out the global warming and phased in the black crime. But at bottom, this choice is their discretion - and since we have freedom of the press, no one can stop them.

Let's say that to be a "major vertex" of the Polygon, you need two attributes. One, a vertex must have power - that is, responsibility. Two, it must be protected from public opinion - that is, insulated from "politics," that is, democracy. If you have one of these but not the other, you are at best a "minor vertex."

The press (aka "MSM") is a major vertex because, as we've seen, it has power. And it is doubly protected. First, no one elects the press. And second, if journalists were elected, they'd simply elect themselves, since they pick the "credible" candidates. These would all be journalists - by definition. See how nice this system is?

The White House (customarily referred to as the "President") is only a minor vertex. Its legal power is considerable, but its protection is lousy. It was national news a few years ago when an open mike caught the President insulting a New York Times reporter. How often do you think that one goes the other way? The White House can challenge the Polygon's program on a few issues, which necessarily thus become high-profile. But the Fourth Republic, at any one time, is doing thousands and thousands of things. Almost all of them are done the Polygon's way, and when they are not it is deeply shocked and offended. So in general are the voters, for obvious reasons, so there is a strong reason to minimize these deviations.

The Polygon might be defined as the "extended civil service." It consists not of those who hold actual formal GS rank, but those whose position demands a sense of civic responsibility - real or fake. The major vertices of the Polygon, by my count, are the press, the universities, the judiciary, the Fed and the banks, the "Hill" (congressional staff), the civil service proper, the NGOs and transnationals, the military, the Beltway bandits (defense and other contractors), and corporate holders of official monopolies (such as "intellectual property").

I suppose this would make it an "iron decagon," but the count starts to get a little fuzzy. Anyway. I will discuss some of these actors in later posts. I hope this has helped you clarify your perception of the strange and awful world we live in.

36 Comments:

I occasionally ask Americans why, if their Constitution is so wonderful, their Supreme Court so routinely ignores it. Thank you for describing the context. (By the by, do you think it possible to design a Constitution with a mechanism that required a Supreme Court to take its duties seriously?)

Michael Paulsen's "The Irrepressible Myth of Marbury" mentions how the Supreme Court's role as the sole interpreter of the Constitution could be otherwise. If there were multiple sources of authority on the Constitution perhaps no single one of them would think it could get away with too much, but perhaps not.

Originally, of course, the Constitution was not a sacred text, but a legal contract signed by the states. The idea that it established the US as a "nation" is about as authentic as the Donation of Constantine.

It's also interesting to note the increasing attention paid to the Declaration of Independence, which (since Jefferson wrote it) was a very nicely-written document, but was fundamentally a press release. It's typical of the decline of formalism that these two texts are now venerated on the same plane.

The U.S. Constitution starts off in a very unformalist way: "We the people of the United States... do ordain and establish this Constitution for the United States of America." This does not indicate a Calhounian contract or treaty between the States. But despite the pretentious language it also cannot be a contract between the individuals in the population living under the Articles of Confederation, since hardly any of them signed this document and plenty of them actively dissented.

Indeed, there simply is no unambiguous statement of the legal authority under which it was formed. It's easy to see how this grossly unformalist preamble helped lead to the Civil War.

I question whether a formalist can properly advocate a Fifth Republic. A current revolution is not protected by the doctrine of adverse possession. Until the statute of limitations clock runs out it's just trespassing.

However, there could still be a formalistically proper revolution in the form of a failure of the previous regime to properly assert adverse possession. This could occur if there is some equivalent to a continuous (even if unsuccessful) challenge to the previous regime. If the statute of limitations is 20 years and the property owner sues to kick off the trespasser at T+15 years, the clock is reset and is stopped while the dispute remains. There is thus no adverse possession even if the lawsuit drags on indefinitely into the future. Adverse possession only occurs after the owner has acquiesed for the full time period.

In lieu of actual lawsuits to overturn a political revolution -- and who would have standing to file such a suit? -- we might look at the substantiality and continuity of political resistance to it since its origin.

It seems to me, for example, that resistance to the New Deal has been substantial and continuous enough to have often reset the clock, so that we could properly overturn Footnote Four and restore the Third Republic. However, it is unlikely one could make the same argument for the Civil War and 13th-15th Amendments (although one can make this argument for more many of the more recent interpretations of the 14th Amendment to which at least one and often more justices have often dissented). And there has been no substantial and continuous questioning of the Second Republic and its Constitution, despite the current comments of Mencius and myself.

In other words, in the absence of a practical ability to sue (which resets the clock for normal adverse possession) there must be some level of activism that keeps alive a dispute and thus prevents a political trespasser from gaining lawful title by adverse possession. Of course as good formalists we should figure out what specifically this is -- my "seems to me" doesn't really cut it. :-)

I think it's a well-known piece of legislative history that "We the People of the United States..." was an unfortunate drafting mistake, which arose after someone pointed out that not all the states might ratify. The intended meaning, in modern English, was "We the Peoples of Connecticut, Delaware, Georgia..."

In any case, using the standard of original public meaning, no one suspected that state sovereignty was being abolished. So I think my reference to the Donation of Constantine, while perhaps inflammatory, is not utterly out of line.

What formalism tells me about getting rid of the Fourth Republic is simply that it has to follow a process that is valid in Fourth Republic terms - ie, trying to do it violently or illegally won't work. Each Republic consented in at least some pseudo-legitimate way to the establishment of its successor.

What you don't want is a contest between two legal systems that both consider themselves righteous. By this standard, the ideal transitions to emulate are those from First to Second and Third to Fourth - both bloodless coups.

I think of the Fourth Republic as a kind of cancer cell. Like a cancer cell, it has found a way around all the mechanisms that were supposed to tell it to stop growing. But as in a cancer cell, these mechanisms still exist and can be reactivated.

The US has an almost unlimited set of powers. Many of these powers are potentially self-destructive. And all it takes is one.

For example, under the unwritten constitution of the Fourth Republic, the Supreme Court can rewrite the constitution on the most slender of legal pretexts. And indeed the Court has flirted with abolishing the New Deal - Lopez, Morrison - then backed away. But it could do it in a single day.

Or it could push even more aggressive interpretations.

My favorite example is that, since I don't think the US should be intervening in the marketplace of ideas, I don't think it should be involved with education, science or the arts.

Is this in the Constitution? Sure it is. The Constitution prohibits the US from granting titles of nobility. What is a PhD, if not a title of nobility? Just apply the same scrutiny we give state support of religion, and it's game, set, and match.

The Fed is another easy target. Etc. But the Court, for very good reasons, tends not to act until it feels like acting will not destroy its authority.

The fundamental answer to "how do we get to a Fifth Republic" is that a large number of Americans need to believe we need a Fifth Republic. In other words, it depends on an appeal to democracy. Democracy is certainly capable of abolishing itself - it's been done many times.

If it was meant to be a treaty among the States it should have read "The States of X, Y, Z, etc... do ordain and establish" rather than "We the Peoples of the States of X, Y, Z, etc...do ordain and establish" much less the even more ambiguous language that made it in.

In a sense "We the People..." is potentially brilliant, as it (according to drafter James Wilson) defines a mythological entity called "the People" as sovereign -- which means that none of the real entities -- neither the States nor the federal government -- are sovereign. They merely derive certain enumerated powers from our god, "the People".

This is my favorite interpretation, since I consider the idea of sovereignty to be a totalitarian evil. Like omnipotence and omniscience, it should be confined to the rarified air of theology. All actual humans and human organizations have very limited knowledge and should have very limited powers.

Have you ever read any of the work of the late Mel Bradford, such as his Founding Fathers?

There were certainly a lot of Federalists who had drunk deeply at the fountain of Rousseau, and who wanted - especially in retrospect - to define the document as a rather mystical social contract in the way you put it.

A lot of this weaselly tension shows in the Constitution. Anyone who has drafted a standards document is familiar with this effect. It's the "let the market work it out" excuse.

But fundamentally, the Preamble is boilerplate. In the sense of IETF standards, it is non-normative. I suspect the reason it was so carelessly drafted is that most people thought it didn't mean much. The sacralization and consequent deformalization of the Constitution - and of the Declaration, which really was just a press release - is a 19th-century development.

When one relies on laws to check a sovereign, one puts the sovereign in a position of being a judge in its own cause. As you put it in another comment, this is unsustainable, and so in fact in the US it has proved.

The result is simply an oligarchy whose structure is profoundly murky and opaque. Who has more power in the Polygon - the press, or the courts? No one knows. Perhaps it changes daily. This is politics and politics, again, is war.

Self-judging always degenerates into a mere ritual of power. Sovereign formalism relies on interests, not rites, to align the government of a country with the goals of its beneficiaries and its residents. I suspect that the Industrial Revolution might be more accurately described as the Corporate Revolution - the birth of modern industry and the birth of the joint-stock corporation are suspiciously proximate - and I don't see why applying the same principle to sovereign states would have any different effect. Granted this assumes that good government and profitable government are more or less identical, but I see no good reason to think they're not.

I realize that this is a novel and untested idea. But the alternative is what we have and it does not strike me as successful.

It's not untested. Besides the African Company, the East India Company, and the American colonies, most European colonization of the world before the 19th century (and much during the 19th) was basically of the form you propose. Brief verdict: very effective, very profitable, but often very brutal. And a very different thing from the corporations we know that don't wield police powers.

The problem is that it's impossible to know how much of that brutality was essential to the task of maintaining sovereignty. We're talking about brutal times in brutal places.

In other words, the experiment is not controlled. Political experiments never are. But it is one thing to compare apples to oranges, let alone - as this common argument does - compare apples to nothing at all.

The rule of the East India Company, for example, should not be compared to the government of Massachusetts. It should be compared to the Mughals, the Marathas, etc. Despite centuries of nationalist vilification, the reaction of the residents of the Indian subcontinent to the replacement of native potentates by European corporations is well-documented, and it was overwhelmingly positive.

The perfect is often the enemy of the good. In Africa, for example, it was very reasonable to suppose that nationalist colonialism would produce better government than corporate colonialism, or that democratist postcolonialism would produce better government than nationalist colonialism. Yet I think if you look at the track record of these propositions, it is - at best - mixed.

Also, the structure of the original "corporate colonialism" was hardly a smoothly-running corporate machine.

Apart from all the other problems of maintaining a multinational organization in the 18th century, remember that none of the colonial corporations were sovereign. They were creatures of domestic politics. They never had any kind of independent security.

As such they had incentive structures quite different from a sovereign nation-state. For example, the insecurity of their property gave them an incentive to destroy rather than conserve capital - ie, to loot and overtax.

I think European monarchies, defined as family-owned businesses, are generally better examples of the SSC paradigm, though certainly not perfect by any means.

hi, about designing a constitution with a protection mechanism to prevent a supreme court ignores it, I think it is worthy of consideration making court members subject to the people thru periodic elections.

Terms could be 8 years, or 12 years, or maybe 6 years, like federal senators.

Other judges could be chosen the same way they are now.

What do you think?

Jorge MataAtlantic-Pacific Alliance,a Society for the Study and Defense of the US Constitutionhttp://atlanticpacificalliance.com

That would make the courts accountable to the people as opposed to the document. In that the people are often ignorant, prone to emotional swings of opinion and may not value certain parts of the document that can be made to look bad when a well-versed demagogue wants it, I think it would fail.